UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
2:03-cr-158-KJD-PAL
May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.
…
This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.
…
There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.
…
Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

On November 10, 2010, Brandon Caparotta pleaded guilty to theft of firearms from a licensed dealer, a violation of 18 U.S.C. § 922(u), and possession of stolen firearms, a violation of 18 U.S.C. § 924(a)(2). At the guilty plea, the Court ordered the preparation of a presentence report (PSR).

and quoted from paragraph 7 of the PSR:

While at the residence, Caparotta gave Cory Damon the mini-bike, which Caparotta reported stealing, and asked Damon to sell it for him, so they could split the money. They were in the process of stealing a Ninja 1000 motorcycle when the pickup truck got stuck in a ditch and the police came.

The issue:

She explained that she was not objecting because the PSR inaccurately reported what Corey Damon had said; rather, she was objecting because what Corey Damon had said was false and should not be considered by the Court.

and

Defense counsel contended that under Rule 32(i)(3)(B), the Court had an obligation to strike the portion of the PSR to which she had objected. Fed. R. Crim. P. 32(i)(3)(B).

Therefore

The Court therefore ORDERS Brandon Caparotta within seven days of the date of this Order to set forth in detail precisely what statements he contends are erroneous on a line by line basis

Presumably that hearing in Maine District Court went forward – but later, this same defendant’s case on subsequent appeal, the First Circuit affirmed the conviction, USA v Caparotta, 676 F.3d 213 (April 5, 2012, 1st Cir.) – This case decided before Chief Circuit Judge Lynch, Retired Associate Justice of the Supreme Court David Souter sitting by designation and Associate Circuit Justice Stahl, who wrote the opinion:

After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months’ imprisonment. That sentence was based, in part, on the district court’s finding that Caparotta qualified as a “prohibited person” who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for it to be included in his Presentence Investigation Report (PSR) and used against him at sentencing. He also claims that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, when his trial attorney allowed him to disclose the information. We find that Caparotta’s due process claim is waived, that he has not demonstrated a violation of Rule 32, and that his Sixth Amendment claim fails. We therefore affirm.

Beasley objected to the PSI because it mentions bank robberies for which the he was never charged and for which he denied involvement. (Crim-DE# 47); (PSI at ¶¶ 49-54).

At the sentencing hearing, former FBI Agent Terry Mullen testified there were similarities between the instant offense and four uncharged bank robberies. (Crim-DE# 64 at 11-12). The robberies were of Washington Mutual banks, except one that involved a World Savings Bank. (Crim-DE# 64 at 15-16). In all the offenses, the perpetrators were dressed like ninjas in dark long-sleeved shirts and dark long pants, stocking masks, and gloves. They carried two-way radios and police scanners was well as a nylon gym bag for the money and AK-47 handguns and, one time, a shotgun. (Crim-DE# 64 at 18-19). They would put guns to bank employees’ heads, point guns at people in the bank, physically push people to the ground and threaten to kill them. (Crim-DE# 64 at 19-20). They would drive a stolen car to the bank and leave a safe-car nearby. After the offense, they would drive away in the stolen car then abandon it and flee in the safe-car. (Crim-DE# 64 at 20). Most of the offenses involved stolen Ford Taurus as getaway cars. (Crim-DE# 64 at 15-16). Beasley and his brother lived in Broward County in the same geographic area where the getaway cars were stolen. (Crim-DE# 64 at 17).

Explaining this due process claim:

Beasley appears to assert his sentencing violated due process because the Court relied on four additional offenses to which he did not plead guilty and for which he was not tried.

A court may consider relevant facts concerning a defendant’s background, character, and conduct when imposing a reasonable sentence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). This includes consideration of a defendant’s uncharged criminal acts so long as those acts are proved by a preponderance of the evidence. See Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (noting uncharged conduct can be considered for sentencing purposes so long as it is proved by a preponderance of the evidence); United States v. Lindsey, 482 F.3d 1285, 1294-95 (11th Cir. 2007).

concluding:

Based on the foregoing, it is recommended that the motion to vacate be denied without an evidentiary hearing.

Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.

Note also in the case opinion is reference to an AR-15 assault rifle, a Tech-9 rifle and a stolen white Ford Expedition.

This pro se defendant was convicted of robberies and attempted carjacking and was described by witness testimony as wearing a ninja-suit and wielding an AK-47. Here the Court in 2007 denies motion for new trial.

CRIMINAL ACTION NO. 06-33-01
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Opinion by Judge Jan E. DuBois, decided August 24, 2007:

On February 22, 2007, a jury convicted defendant Andre Henry of crimes related to eight robberies of fast food restaurants; the straw purchase, possession, and use of assault weapons and other firearms; two armed bank robberies; conspiracy to commit a third armed bank robbery; an attempted carjacking that involved shots fired at a police officer; and solicitation to commit murder of a federal grand jury witness. Currently before the Court is defendant Andre Henry’s pro se Motion for Judgment of Acquittal and Motion for New Trial Pursuant to Fed. Rules of Crim. Proc. 29 and 33 (Document No. 473, filed April 12, 2007). For the reasons that follow, defendant’s Motion for Judgment of Acquittal and Motion for New Trial are denied.

Included in the facts:

one of the victim of the attempted carjacking, Janine McCullers, testified as follows during the trial:

[A]s I’m ready to pull out of the parking space, an individual is in front of my car in all black, like a Ninja-type suit, with a gun pointed at me, standing in front of the car with a gun aimed like this — in front of my car saying something

The court denies defendant’s motion for acquittal, finding sufficient mens rea to meet the elements of the crimes of carjacking. Additionally defendant’s motion for a new trial is also denied.

Defendant Robert Emmett Joyce (“Joyce”) challenges the imposition in his sentence of a three-level upward adjustment, pursuant to U.S.S.G. § 3B1.1(b). Joyce seeks to have the adjustment reversed and the matter remanded for resentencing.

We hold that the lower court’s imposition of the three-level upward adjustment, based on Joyce’s role in the offense, is warranted. Consequently, we affirm

The Court’s reasoning in affirming the lower Court adjusted sentencing, is based on the defendant’s managerial role in the conspiracy:

There is no doubt that Joyce exercised managerial responsibilities “over the metaphorical assets of the criminal organization”. Joyce badgered David J. Ryan, a paid confidential government informant, to obtain armored truck route sheets, guard uniforms, and ninja face masks. Joyce further planned the crime to need at least three stolen vehicles, one of them a van with a sliding door (all to be “torched” at the end of the robbery) and a group of at least five experienced, reliable robbers in addition to himself using automatic weapons, including specifically among them, “Uzi submachine guns”

What makes a face mask into a “ninja face masks”? Presumably someone called them that, either in a submitted brief or in testimony? But the Court uses no quotes around the word “ninja” here. Contrast, the Court’s use of quotes around the word “torched” and “Uzi submachine guns”. This Court apparently feels that ninja is a common enough descriptor as to not need quotes.

Not surprising then that the Court rules against this defendant, affirming the lower Court in giving Joyce a lengthened sentence.

In my NinjaLaw post about a Ninja Hood, I wondered if labeling the hood a ninja hood is overly presumptive. Like calling a an object a burglar’s tool, it seems to imply an intent in the object before any action. Similarly the face masks in this case, are “ninja” because they are armed robbers?